There was a sharp spike in the five-year period from 2005 to 2010, with government seizures of assets doubling from both criminals as well as innocent citizens, going from $1.25 billion to $2.5 billion, and totals have continued to steadily increase. Federal authorities seized over $4 billion in 2013 through forfeiture, with some of the money being taken from innocent victims.
While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture typically involves a dispute between law enforcement and property like money, a house or a boat, particularly if or when that item is suspected of being involved in a crime. In order to recover the seized property, owners must prove it was not involved in criminal activity, which can prove impossible in many cases.
LAPEER, Mich. – A 2015 headline from the Washington Post reads “Law enforcement took more stuff from people than burglars did last year.” That year alone, assets seized by law enforcement and governmental agencies totaled more than $5 billion. And those numbers have only risen since.
Critics of civil forfeitures say they violate the presumption of innocence by punishing people before they’ve been found guilty of a crime. Supporters of the practice insist forfeitures help police fight drug dealers and other criminals.
“It’s Michigan’s legal version of a smash and grab,” said Lapeer-based attorney and activist Bernard Jocuns. “That’s all it is. So many of these law enforcement officials and police manipulate the system and take advantage of people, because they don’t need evidence to take people’s property. They just take what they want. And it’s become completely out of control, especially in relation to marijuana crimes. It can be a lawnmower or an air compressor. Really, if the law enforcement agency needs something, they’ll just take it during a raid. They abuse their authority and bully people to fill local coffers.”
Fortunately, the practice of civil forfeitures is being scrutinized both in Michigan and nationwide. In May of 2018, the state House approved a bill that would require police in Michigan to secure a criminal conviction before seizing property. The bill is being debated in the Judiciary Committee.
U.S. Attorney General Jeff Sessions last year announced he would revive civil forfeitures at the federal level. He said seizures provide a “key tool that helps law enforcement defund organized crime, take back ill-gotten gains and prevent new crimes from being committed.”
Sessions issued a directive reinstituting the Department of Justice’s Equitable Sharing Program, which allowed state and local law enforcement agencies to seize money and property, and then transfer those assets to federal control. The program allowed local agencies to bypass state regulations that limit how forfeiture funds are used.
Sessions’ announcement drew criticism from across the political spectrum. Supreme Court Justice Clarence Thomas said he doubted civil forfeitures were constitutional.
The Supreme Court has rejected previous challenges to civil forfeitures, including the landmark 1996 case of a Royal Oak woman, Tina Bennis, who argued her car was improperly seized because she didn’t know her husband had used it to pick up a prostitute.
Previous rulings have found that while people have rights, their property doesn’t. In civil forfeiture cases, the defendants are the property, not the owners. However, Michigan lawmakers in recent years have taken steps toward curbing civil forfeitures.
“Police officers and departments consciously work to tie up people’s property in court and they have to jump through all of these hoops and pay exponential legal fees,” said Jocuns. “It’s completely unnecessary and archaic. They can lose their house over some seeds. It’s used as both a sword and a shield by cops.”
Marlana Swindell, a resident of Lapeer, knows about civil asset forfeiture firsthand, having been subjected to it in August of 2016 after helping a friend, who had become the target of Lapeer County Sheriff’s Dept. Swindell was a legally registered patient and caregiver who worked with Jamie Fricke. Fricke, a local medical marijuana advocate, was arrested four times between February and May of 2012 on what Fricke characterizes as unwarranted drug charges.
The sheriff’s department argued that many of Fricke’s seized items, which included a 2010 Chevrolet Malibu, $127 in cash, a piece of luggage, some paperwork and a variety of marijuana products, had been subject to a forfeiture hearing that Fricke had not properly challenged and had been disposed of before an order had been written.
“I hung out with Jamie Fricke, so my house got raided,” said Swindell sardonically. “She had a dispensary and (Det.) Gary Parks didn’t like that. He didn’t think marijuana should be legal. So, he raided her several times and then my house. I worked for her, so he said that I kept all of her money and paperwork at my house and he raided my home. I didn’t have anything illegal, so all the things I had were well within the law, but of course they took it anyway. Thousands of dollars and all of the marijuana in the house, regardless of the fact that I was allowed to have it.”
Swindell was left with little in the way of recourse and at the time of the seizure the law stipulated that any money found near any kind of drug was deemed ill-gotten and therefore subject to seizure. Unfortunately, regardless of the fact that Swindell had proof of how the money was received, all of her cash was seized, along with her medicinal marijuana, which she requires for an existing condition.
As time went on, charges against Swindell were dropped, although Fricke was charged with maintaining a drug house. The case was reassigned to a different county due to a conflict of interest, and nearly a year later, Swindell found out that she was able to pay bond on her assets, which totaled $2,000 on top of the $3,800 she had lost in the seizure. Because the charges against Swindell were dropped, she assumed she’d be able to recover her money, but she was told by many attorneys that outcome was highly unlikely.
“We are not wealthy people,” explained Swindell. “Five thousand, almost six thousand dollars is a lot of money. We have three kids in college. But finally, in a last-ditch effort, they decide to take us to court to keep all that money, even though they’re not pressing charges. And they were allowed to do so by law. Fortunately, the attorney encouraged them to give us our money back and somehow got them to agree to give half the money back. I got my bond, plus half my money back. They just kept the rest. And, on top of all of this, those guys are getting hazard pay for each raid they do. It’s like triple overtime, because I’m a “dangerous drug dealer.” So it’s in their interest to do these raids because they get paid a huge amount, then they just keep whatever they want. It’s ridiculous. And the reason they do it to marijuana patients is because they know we have money. They’re not doing any raids on heroin users because they know they don’t have a pot to piss in. They have nothing to take. This is all very calculated and it’s ridiculous that it’s legal.”
Last year, police in Michigan seized about $13 million in assets, according to the state police 2018 Asset Forfeiture Report, which was released June 30 to the Mackinac Center.
Law enforcement forfeited $11.8 million in cash and $1.3 million in property, including eight homes, 711 weapons and 7,999 vehicles. Of the 2017 forfeitures, 736 people were not charged with a crime, with another 220 were charged but not convicted. Another 228 weren’t charged because they cooperated with prosecutors.
Nearly all of the proceeds from forfeited assets went back to the local law enforcement agencies that initiated the seizures. They spent 36 percent on equipment, 9 percent on vehicles, 8.5 percent on personnel, 5 percent on training and the rest on other areas, including K-9 units and supplies.
Only 43 percent of those whose property was forfeited were charged and convicted. The Jocuns Law Firm represents real people in Civil Forfeitures battles with the Government.